Question
I recently offered someone a new job. When I asked them to prove their right to work in the UK, they provided me with a Polish passport. The only thing is, the passport expired a few years ago and they don’t have any other ID. Do they have the right to work in the UK, and can I prove this if asked? I am also concerned about whether I will still be able to keep them on when we leave the European Union.
Answer
Yes, the employee currently has the right to work in the UK. The future of nationals from the European Economic Area (and Switzerland) following Brexit is not yet known, so for now the current immigration laws continue to apply.
For the purposes of this response, when I refer to EEA nationals, I am also including Swiss nationals. However, while Croatia is now part of the EEA, transitional measures mean that Croatian nationals do not yet have the same automatic rights as other EEA nationals. As such, the majority of this response will not apply to them as they need different documents to evidence their right to work in the UK.
EEA nationals (with the exception of Croatian nationals, as above) have the right to work in the UK without needing a visa. That means that they do not have to apply to the Home Office for permission before they can come to the UK and take up work. Essentially, at the moment EEA nationals have the same rights as UK nationals in this regard.
In relation to conducting a right to work check, EEA nationals can again be treated in the same way as UK nationals. The Home Office allows a passport to be used as evidence of an employee’s right to work, and there is no need for the passport to be current. That means that the passport can have expired.
As you’ve pointed out, you will need to prove that you confirmed the employee’s right to work in the UK if asked by the Home Office to do so. A right to work check should involve three stages: obtain, check and copy.
For the first stage, obtain, you should ask the employee to provide their original passport. You cannot accept a photocopy of the document or a photo of it.
The second stage, check, requires you to verify that the document is genuine and that the employee is the person named on the passport. This will usually involve checking the photo against the employee and also looking at the date of birth. If the passport states that the person is 18 but they look significantly older, this should be questioned.
You should also check the name on the passport against the name that you have for them. If the names are different, for example due to marriage, you should ask for additional documents such as a marriage certificate.
Finally, you should satisfy yourself that the passport has not been tampered with. If for example any of the letters or numbers look blurred or the photo looks uneven, you may have to investigate further. Bear in mind that you will have to explain to the Home Office if you accept a document that clearly looks like it has been tampered with.
For stage three, copy, you should take a clear photocopy of the document in a format that cannot be altered. You could do this electronically or in hard copy. For an EEA passport, you should copy the photo page and any page containing information such as their date of birth. You must also record the date on which the copy was made, as the Home Office will want to know when you conducted the check (i.e. at the start of their employment or before).
Keep the copies for as long as the employee is working for you, and for two years afterward, then securely destroy them.
Looking ahead, as above, the future of employing non-UK nationals is not yet clear. A significant part of the Brexit negotiations relates to the free movement of people and it is likely that the government will have to make some concessions in this regard.
One proposal is to allow EEA nationals to apply to remain in the UK if they have been here for five years or more, in line with the current ability of non-EEA nationals to apply for indefinite leave to remain after that time. There is also a proposal to allow EEA nationals who were in the UK at a certain point in time to stay until they have been here for five years, and at that time to apply for indefinite leave to remain, although the point in time has not yet been defined.
As such, in relation to this employee, your ability to continue employing him may depend on when he came to the UK. However, until more is known, you can simply carry on as normal.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.